Article excerpt

In the past few years the Second Circuit took the extraordinary step of removing two immigration judges from cases for evincing inappropriate behavior and conduct toward asylum seekers in their courts. As a consequence, in each case the Second Circuit vacated and remanded these judges' decisions and ordered that further proceedings continue before different immigration judges. While the two cases are factually different, and indeed the behavior of one of these immigration judges seems somewhat more egregious than the other, they are remarkable in that removal of judges for inappropriate conduct is not all that common a remedy.

Immigration Judge Jeffrey Chase. Aboubacar Ba, a citizen of Mauritania, sought asylum in the United States, as well as withholding of removal and relief under the Convention of Torture. After an administrative review of his case, Immigration Judge (IJ) Jeffrey Chase denied Ba's application, a decision affirmed by the Board of Immigration Appeals (BIA), the final level of administrative review of immigration cases (No. A95 476 650 (B.I.A. Aug. 22, 2005), aff'gNo. A95 476 650 (Immig. Ct. N. Y. City Mar. 26, 2004)). The Second Circuit Court of Appeals reviewed the BIA's decision in Aboubacar Ba v. Gonzaks (228 Fed. Appx. 7, 2007) and held in a summary order that the case be remanded to the agency. Presiding over the case were Circuit Judges Robert Katzmann and Peter Hall, and District Judge David Trager sitting by designation.

While the Second Circuit listed a number of reasons on the merits for its decision to remand, what made this decision remarkable, however, was not the remand itself. Instead, the Ba opinion stands out for the court's public rebuke of IJ Chase. In particular, the Second Circuit ordered that all further proceedings in the Ba case not be held before IJ Chase. Additionally, due to numerous lapses in IJ Chase's judgment that raised doubts about the fairness of other immigration proceedings before him, the court further stated, "[I] t may improve judicial efficiency if, as discussed at oral argument, the BIA, sua sponte, closely re-examined all of [IJ Chase's] cases that are still on appeal" (at 11).

The Second Circuit began its review by stating that the standard of review of the agency's findings is based on the substantial- evidence standard. Expressing its disillusionment with IJ Chase, the court then qualified this standard of review by stating, "[W] e will vacate and remand for new findings if the agency's reasoning or its fact-finding process was sufficiently flawed" (at 9). The court then stated that IJ Chase's findings did not comport with the substantial- evidence standard. Additionally, his decision "contained a plethora of errors and omissions" (at 10). For these reasons, the court remanded the case for further proceedings before a different immigration judge.

Moving beyond the merits, Judge Katzmann then chided IJ Chase for inappropriate demeanor and comments during Ba's hearing. Most galling to the court was a question IJ Chase asked of Ba that implicated the attorney- client privilege: "Regardless of the relevance of the inquiry and the answer, it is inconceivable that IJ Chase, as a judge and lawyer, would not know the impropriety of that question" (at 11). His questions and actions clearly diminished the appearance of impartiality of the proceeding in the eyes of the Second Circuit.

Critically, this was not the first occasion in which the Second Circuit reprimanded IJ Chase. The court cited two prior cases in which IJ Chase was rebuked for his behavior in published opinions. In Guo-Le Huang v. Geniales, 453 F.3d 142 (2d Cir. 2006), a case unmistakably similar to the Ba case, the Second Circuit described IJ Chase's behavior as wholly inappropriate. "[T] his is the rare case where remand is required because of the IJ's apparent bias and hostility toward Huang. The hearings included several instances of questioning by the IJ that were at least inappropriate and at worst indicative of bias against Chinese witnesses" (at 150). …

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